If you ask me, Democrats are focusing too much on fanciful schemes to stop the GOP takeover of the judiciary (court-packing, impeaching judges), and aren't talking enough about much simpler steps we could take to block right-wing judicial activism.
First, many right-wing judicial activist rulings are statutory, which means Congress can just pass laws overturning the courts.
All those rulings on forced arbitration can be overturned with a simple bill. As can the Obamacare ruling, if the court rules for Texas.
All those rulings on forced arbitration can be overturned with a simple bill. As can the Obamacare ruling, if the court rules for Texas.
Second, Democrats should dramatically increase the size and funding of the Congressional Research Service, complete with a new team of lawyers to review precedent and warn of likely challenges to any bill they pass.
Third, Democrats should thoroughly ensure that every provision in their bills is severable, so that right-wing judges can't invalidate entire social programs on a technicality — they'll have to review each provision on its own.
Fourth, no more rolling out bills over ten years. Social programs should take effect immediately. Even right-wing judges are politically sensitive and don't want to rip up people's existing benefits. There's a reason they've never touched Social Security since it was enacted.
Fifth, protest the courts. Loudly. Work the refs. Judges are political figures and many of them care about the legitimacy of their institution. If that legitimacy is perceived to be in crisis, if they feel the whole nation is watching, it can make their opinions more cautious.
All of this matters because, let's face it, the odds are greater than 50/50 that the next justice will be a Republican. We have to win the White House AND the Senate before the next vacancy opens up, and while that's possible, and I'll be fighting for it, it's a tall order.
We are in for a dark era of jurisprudence. But in many ways it's the status quo. The norm throughout history is that the courts are conservative and hostile to the rights of anyone but the white, rich, and powerful. But progress marches on despite it. We just need to plan ahead.
